I recently wrote a column on how the West is curtailing free speech under blasphemy, hate speech, and anti-discrimination laws. As if on cue, lawyer Gloria Allred has called for the criminal prosecution of Rush Limbaugh for calling law student Sandra Fluke a “slut” and “prostitute.” I previously wrote that I believe Limbaugh’s comments were protected speech under the first amendment and constitute opinion for the purposes of any libel action. Such a prosecution would threaten core free speech principles and the law cited by Allred would appear not only inimical to free speech but overtly sexist.
Category: Free Speech
Below is today’s column in The Los Angeles Times exploring the growing attacks on free speech in the West and the recent controversy of the “Zombie Mohammad” case.
Continue reading “Free Speech Under Fire”
The New York Times has an interesting article on the continuing debate over whether lies are protected under the first amendment — a debate that we discussed earlier in relation to the Supreme Court’s consideration of the constitutionality of the Stolen Valor Act. Mark W. Miller, however, is fighting this issue in a different context — challenging a law that makes it a crime to lie in a political campaign. I have always viewed these laws as inimical to free speech and contrary to the First Amendment. The Supreme Court could resolve the question in the Alvarez case — or reinforce the ability of states to prosecute people for falsehoods utterly in political campaigns.
Continue reading “Ohio Case Challenges Law Criminalizing “Lies” In Political Campaign”
House Minority Whip Steny Hoyer (D-Md.) has called on Georgetown Law student Sandra Fluke to sue Rush Limbaugh for calling her a “slut” and a “prostitute” on his radio show. Hoyer insists that the reprehensible comments are also actionable libel. He is half right.
Continue reading “Bad Advice: Hoyer Encourages Fluke To Sue Limbaugh For Defamation”
Iranian human rights lawyer Abdolfattah Soltani has been sentenced to 18 years in prison by what the Iranian government refers to as “courts.” To his credit, Soltani refused to defend himself before the Iranian tribunal which blindly carries out the dictates of the religious leaders of the country.
Submitted by Gene Howington, Guest Blogger
Is an opinion defamation? Is it defamation if it is worn on a t-shirt? Is it defamation if you post a picture of yourself wearing said t-shirt on Facebook? Is the manufacturer liable for civil damages a purchaser of their t-shirt incurred since they wrote the content later found defamatory? An unusual case in Spain raises these questions and more.
A woman in Madrid, Spain is certainly perplexed by a court ruling that found her guilty of a “dignitary tort”. She was sentenced and initially ordered to pay 2,000 euros ( ≈ $2640) in damages and a 240 euro-fine ( ≈ $317), but the court later reduced the damages on appeal to 1,000 euros ( ≈ $1320) and eight days of house arrest in lieu of the fine. Adding insult to injury, the claimant – her ex-husband – asked that the damages be paid in installments to supplement his 700 euro per month income ( ≈ $924 per month).
This is a cause of action here is one we do not have an exact analogy for in the United States, but defamation is close. Historically, the primary dignitary torts recognized in English and subsequently American law are battery, assault, and false imprisonment. These torts still exist under modern American tort law, but they also have criminal law counterparts because they contain elements of violence. Under modern jurisprudence, the term dignitary torts is more closely associated with defamation (slander and libel), false light, intentional infliction of emotional distress, invasion of privacy, and alienation of affections. In some jurisdictions, the use of the phrase “dignitary torts” is limited to those torts which do not require the threat of or actual physical injury. What was required in the present Spanish case was that the statement in question insulted someone’s dignity and effectively damaged that person’s reputation.
What did this woman do to merit this punishment? She posted a picture of herself to Facebook wearing a t-shirt with a slogan on it. Her boyfriend bought it for her while they were on vacation. It’s the kind of “gag t-shirt” commonly sold around the world. What did the shirt say that was so offensive? I’ll tell you below the fold.
Submitted by Gene Howington, Guest Blogger
Coincidentally and often, abuses of civil or human rights in the United States derive from the same source as law made via precedent. That source is vague or overly broad legislation and imprecise use of language. As a matter of good drafting practice, this is why precision language is encouraged – to provide clarity and minimize ambiguity in the letter of the law. When vague laws create issues in court, the court either makes a ruling creating precedent and consequently a plan of action for how to address the issue moving forward although occasionally a law is overturned in toto for vagueness and the legislature can take a fresh swing writing the law.
However, it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing “wiggle room” for Federal authorities to potentially abuse civil and human rights under the color of authority. This is a dangerous practice. The issue of vagueness is at the heart of the NDAA scandal as recently discussed on the blog here, here and here. While the NDAA poses a threat to your 4th, 5th and 6th Amendment rights, the newest attack of vague language is aimed at your 1st Amendment rights of Freedom of Speech, Freedom of Assembly and Freedom to Petition. It is found in the pending legislation of H.R. 347, innocuously titled the “Federal Restricted Buildings and Grounds Improvement Act of 2011”. As currently worded, it might as well have been called the “Federal We’re Too Important To Be Annoyed By Your Protest Act of 2011” or (as described by Rep. Justin Amash (R-MI), one of the few Representatives to vote against the bill) the “First Amendment Rights Eradication Act” because it effectively outlaws protests near people who are “authorized” to be protected by the Secret Service. Being that the bill passed on a House vote 388-3 and is currently coming out of committee in the Senate, its progress is something civil libertarians and activists may want to monitor. UPDATE: President Obama signed H.R. 347 into law on March 9, 2012.
Continue reading “Imprecise Language and the Risks of H.R. 347”
In a controversial interview, Harvard University professor Alan Dershowitz has called not only for the White House to sever ties with Media Matters, but has called upon Media Matters to fire staff member M.J. Rosenberg for this criticism of supporters of Israel. Clearly, this is not a first amendment issue that arises when the government is asked to engage in censorship or coercion with regard to critics. However, the demand for Rosenberg’s termination does raise serious concerns over the freedom for writers to raise often controversial topics and positions. Rosenberg was voicing a common objection over Israeli policy and the demands for his termination sends a chilling message for anyone who voices such positions.
Continue reading “Dershowitz Calls On Media Matters To Fire Critic Of Israel”
Chief U.S. District Judge of Montana Richard Cebull is under fire for a joke that he sent to friends from his court email. The email has been denounced as racist and “compares African-Americans to dogs.” He insists that it was not for public circulation and reflected his dislike for the president, not black people.
Continue reading “Racist or Clueless? Chief Judge of Montana Under Fire For Obama Joke”
There is an interesting case out of Mantua, Ohio. A 17-year-old student at Crestwood High School was arrested for posing with an assault rifle on Facebook and writing about the massacre in allegedly favorable terms. This followed the shooting at Chardon High School in Ohio.
Submitted by: Mike Spindell, Guest Blogger
Do you wonder how American politics has gotten so crazy in the last five decades? As someone who has lived through them as an adult I have often been amazed by our evolving political scene. This week the PBS documentary series “The American Experience” focused on the life and the two terms of Bill Clinton. It was a typical PBS historical documentary in that it made sure to present all sides of the issues and of course it dealt with “Whitewater”, Monica Lewinsky and the Impeachment proceedings. While we all lived through this bizarre political period in the 90’s, time and personal matters no doubt has dimmed its memory for most of us who were not directly involved. What fascinated me about this four hour documentary was that even in its non-partisan fairness, it delved into the massive effort made to discredit Bill Clinton begun from even before the inception of his first term. Though he won his election fairly, Republican’s and Conservatives never accepted his legitimacy as a duly elected President. It was this perceived “illegitimacy” that undermined his efforts as President and was the focus of constant attacks from his enemies. I’m not writing this as someone who felt that Bill Clinton was a great President and there were many concessions he made like “Welfare Reform” and “Don’t Ask, Don’t Tell” that I still hold against him. My question is that given his legitimate electoral mandate, did he ever get a chance to actually put his programs into effect and be President?
Bill Clinton entered his Presidency at the end of the first Iraq War. His inaugural speech talked of healing and bi-partisanship, as he would work together with Republicans to create a bridge to the Twenty First Century. The country was in a recession, partly caused by the excesses of military overspending by Reagan and G.H.W. Bush and by their tax cuts for the wealthy. There was a shrinking middle class due to the outsourcing of our manufacturing base and also because the Reagan Social Security “Reform” was actually a massive, regressive tax raise on those of middle income. The Reagan and G.H.W. Bush years burdened the Country with massive budget deficits and in Clinton’s first years the clamoring of the Republicans, Wall Street and the “Chattering Classes” for “Deficit Reduction” was at a fever pitch. We had also seen an illegal involvement in trying to topple the government of Nicaragua, despite a strong Congressional ban and its’ direct perpetrators falling on their swords to protect President Reagan and Vice President Bush. The din of budget deficits was so loud, with predictions so dire, that this newly elected President, with no Washington experience, was forced to accept the specious merits of this argument. Forgotten of course was that it was these selfsame groups, had blithely ignored rising deficits during the twelve years past of Republican governance. Perhaps, in my re-visiting what you already probably knew, a sense of Deja’ Vu might be occurring when thinking of American politics and political issues today? Continue reading “Hypocrisy Democracy: What’s Going On?”
There is a surprising story out of Mechanicsburg, Pennsylvania that seems the perfect storm of religious tensions. You begin with Ernie Perce, an atheist who marched as a zombie Mohammad in the Mechanicsburg Halloween parade. Then you add Talaag Elbayomy, a Muslim who stepped off a curb and reportedly attacked Perce for insulting the Prophet. Then you have a judge (Judge Mark Martin) who threw out the criminal charges against Elbayomy and ridiculed the victim, Perce. The Judge identifies himself as a Muslim and says that Perce conduct is not what the First Amendment is supposed to protect. [UPDATE: The judge says he is not a Muslim despite what is heard by most listeners on the tape. That being the case, the criticism of the comments remains.] [UPDATE2: Perce has responded to our blog and denied many of the factual representations made by Judge Martin].
The Iranian Sharia courts have given the world a steady stream of horrific judgments — using the pretense of a legal system to mete out religious-based and perfectly medieval punishments. They have now added a fresh outrage. Despite worldwide condemnation, a trial court in Iran has issued its final verdict that Youcef Nadarkhani, 34, be put to death. His crime? Converting to Christianity. During the country’s Sharia law, such apostasy is punished by death.
Continue reading “Iranian Court Orders The Death Penalty For Christian Pastor Convicted of Apostasy”
Submitted by Gene Howington, Guest Blogger
Reasonable people tend to agree there is both a right to privacy and that it is necessary. But what exactly is the right to privacy? Justice Brandeis famously said in Olmstead v. U.S., 277 U.S. 438, 479 (1928), “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.” Plainly put, at its heart a right to privacy is simply a right to be let alone.
However, do we need to specifically protect it or generally protect it? Is that right absolute? Laws, by definition and the nature of entering a social compact, are restrictions on absolute liberty found in the state of nature. One of the larger disagreements at the Constitutional Convention was about whether enumerated rights would serve to unjustly limit those rights versus a failure to enumerate rights would result in rights not being properly protected. This is a valid question surrounding this issue, especially since some would advocate enumerating the right to privacy by Constitutional amendment. There are advantages and disadvantages to both approaches. While specifically defining/enumerating a right creates a foundation for arguments surrounding said right, leaving a right’s definition nebulous allows jurisprudence greater leeway to evolve around fact specific instance and questions that in the long run can result in a more nuanced understanding and application of the right without the constraints a foundational definition might impose. In this light, consider the right to privacy.
Continue reading “Privacy Rights – To Enumerate or Not to Enumerate, That is the Question”
Below is my column today in the Washington Post (Sunday) Outlook Section. The column concerns the Alvarez case to be heard on Wednesday before the Supreme Court. I have been a long critic of the Stolen Valor Act — not because I am not highly sympathetic to its purpose but because I am concerned about the means of achieving that purpose. I share the anger over people who falsely claim to be war heroes. However, the government often selects popular causes for expanding its power over speech or conduct of its citizens. The question before the Court is really not about this specific form of lying, but the legal basis for criminalizing lies generally. The Act is different in that it seeks to criminalize lies simply because they are lies as opposed to lies that are used to commit a specific crime like larceny or fraud or perjury. I also spoke to NPR on Talk To The Nation on this subject.
Continue reading “The Better Part of Valor: Should Lying About Medals Be A Crime?”